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Law: For the Defense
Attorney Amy Furness is defending the opioid manufacturer of Percocet
She recalls chaperoning a field trip to Washington, D.C., recently with her son’s fifth-grade class. Forced to give up daytime use of her phone, she stayed up past midnight each night working and going through e-mails.
“It’s hard to be a working mom, especially as a lawyer. You’re at the beck and call of your clients and judge’s calendar,” says University of Miami Law professor Renee Schimkat, who became friends with Furness while working at Carlton Fields for 16 years. “Amy has found the balance.”
Furness notes that she came to motherhood relatively late, after she had gained a reputation as someone who could be counted on. Meanwhile, she has taken a larger role at Carlton Fields and now manages the Miami office with 85 lawyers.
The opioid case
Among her current cases is the defense of Endo Pharmaceuticals, the maker of Percocet, in a lawsuit brought by the state attorney general that seeks to hold drug companies responsible for Florida’s opioid epidemic. Furness is Endo’s regional coordinating counsel in Florida, meaning she manages the company’s litigation docket statewide. In addition to the AG’s lawsuit, Endo faces a number of complaints from hospitals and local governments asserting opioid-related damages.
Across Florida, the incidence of fatal heroin overdoses rose from 101 deaths in 2012 to 707 deaths in 2017, according to the National Institute on Drug Abuse. Deaths involving synthetic opioids, such as fentanyl, rose from 162 in 2012 to 2,162 in 2017. In 2017, another 1,272 died after taking prescription opioids.
The AG’s lawsuit outlines several ways the epidemic has cost the state and local entities money: Police, paramedics and coroners have had to respond to more overdoses; hospitals have seen more babies born addicted to opioids; and more children have gone into foster care because of a parent’s addiction.
The state is suing seven opioid manufacturers, including Endo and OxyContin maker Purdue Pharma, three distributors and the nation’s two largest drugstore chains, CVS and Walgreens. The suit argues that manufacturers used deceptive marketing to persuade doctors and the public that opioids were a safe way to treat common chronic pain and then flooded the state with “unjustifiably high quantities” of pills. Distributors and drugstores contributed to the problem by overselling opioids and not preventing illegal sales, the suit alleges.
In February, Florida Attorney General Ashley Moody appeared in a Pasco County courtroom for the suit’s first hearing. Pasco was chosen because it’s a hotbed for opioid addiction, the suit says. “I wanted to be here today so you know how important it was to our office,” Moody told the judge. “My office will dedicate every necessary resource to make sure that we can get to trial in an expeditious fashion. We’re hoping to get there by May of next year.”
Lars Noah, a law professor at the University of Florida, says Moody’s office likely will try to settle the case out of court. While plaintiff lawyers involved in similar suits nationwide say they expect to collect damages similar to the tobacco settlements, Noah predicts opioid manufacturers will end up paying considerably less than Big Tobacco did in the 1990s.
“Yes, they did some pretty awful things,” he says. “But I don’t think they’re shaking in their boots because of these lawsuits.”
A key difference, he says, is that plaintiffs in the tobacco litigation could point to government spending on smoking-related health care, while the link between the production of opioids and harm to government budgets is less clear. “At some point, we’re talking about unlawful use of lawful products,” he says. “That creates real causation hurdles for state and local entities.”
Furness says it’s too early to discuss her defense strategy for Endo. “The litigation has just begun,” she says.
Ricardo Martinez-Cid, the plaintiffs attorney in the Guatemalan plane crash trial, says Furness is a formidable opponent. “She’s always prepared and knows how to communicate complex issues to a jury,” he says. “As bad as the news has been about opioid companies and their conduct, she’ll make sure they get as fair a day in court as they can.”
Like most litigators, Furness doesn’t always win. One loss involved a lawsuit filed by a lifelong, heavy smoker who had been diagnosed with throat cancer and chronic obstructive pulmonary disease (COPD). The plaintiff, an elderly woman, sued R.J. Reynolds Tobacco in state court in Miami, seeking to hold the company responsible for her illnesses. As part of RJR’s defense team, Furness argued, among other things, that alcohol use could have caused her cancer, and that asthma could have caused her COPD. In 2011, a jury assigned 70% of the fault to the plaintiff and 30% to RJR, which had to pay $1 million in damages.
Furness says it’s unfair to reflexively blame a company any time its products are involved in controversy.
“A lot of claims that we see involve people who may not have understood how to use the product, may have misused the product or may have just unfortunately had a different experience that is unrelated to the product,” she says.
“I do believe the manufacturers I represent really are trying to make a product that’s beneficial and has the value that’s advertised, never intending to harm or injure anyone,” she adds. “A corporation wouldn’t go into business making a product that’s designed to be harmful.”
On a recent afternoon at her office, Furness introduced herself by joking about her attire, a black dress and white jacket accented by a red flower pin. “Black is my color, but I put on a white jacket for you,” she says, laughing. “I didn’t want to terrify you in all black.”
